Draft Legislation Would Prohibit AG’s Office From Providing Legal Counsel for Boards the AG Sits On

Josh Swanson, an attorney representing the Wilkinson family, presents his arguements to the justices of the North Dakota Supreme Court in the Wilkinson v. Board of University and School Lands case on Monday at the state Captiol in Bismarck.Mike McCleary / Bismarck Tribune

The State of North Dakota asks a lot from its statewide elected officials. In addition to the duties of their specific elected office, these folks are also asked to sit on a myriad of governing boards.

For instance, the powerful Industrial Commission which overseas oil and gas development in the state (among other things) has the Governor, the Attorney General, and the Agriculture Commissioner as its membership.

Another example is the Board of University and School Lands, which manages state-owned lands for the benefit of our educational institutions. It features the Governor, the Attorney General, the Secretary of State, the State Treasurer, and the Superintendent of Schools.

Providing legal counsel to these various boards is the Office of the Attorney General. But is there a conflict of interest when the AG’s office is providing legal counsel for a board the AG is also a member of?

One state lawmaker seems to think so. Rep. Roscoe Streyle (R-Minot) has a bill draft for the next legislative session which, in addition to changing the makeup of the Land Board, would also prohibit the AG’s office from providing legal advice to any board the AG also sits on.

You can see the full bill below, but this is the pertinent excerpt:

The legislation is born of recent controversy involving the Land Board and mineral rights under Lake Sakajawea, as evidenced by Rep. Streyle’s recent tweeting:

You can read the backstory here, but essentially when the federal government damned the Missouri River they compensated the land owners flooded by the resulting lake for the surface rights to their property. They did not, however, buy up all the mineral rights. Those minerals have been largely worthless until recent years when techniques like horizontal drilling made it possible to access those minerals. The Land Board tried to claim those minerals, arguing that the State of North Dakota owns all minerals under the Missouri River and that the lake itself is just another part of the river.

The Legislature disagrees, and the North Dakota Supreme Court has sided with the private mineral owners as well, but the AG’s office has persisted in pursuing litigation (which, if won, could cost taxpayers billions).

Many lawmakers I’ve spoken to feel the AG’s office has gone rogue on this issue. This bill seems like an attempt to rein them in.

I’m agnostic as to the changes the legislation makes to the Land Board membership, but I like the idea of removing even the appearance of a conflict between the Attorney General’s interests as a member of the boards he/she sits on and the legal counsel provided to those boards by the AG’s office.